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New rules extend EHR safe harbor to 2021


By Andis Robeznieks
Posted: December 27, 2013 - 3:15 pm ET
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The anti-kickback safe harbor set to expire Dec. 31 that allows hospitals to provide physician practices with electronic health-record systems and training to operate them has been extended through 2021 under new rules (PDF) from HHS' inspector general's office and the CMS (PDF).

The extension is five years longer than HHS proposed in April. The final rules also specifically exclude laboratory companies from the “scope of protected donors,” update provisions on interoperability, remove electronic-prescribing requirements and make clear that EHR donors cannot put limits on the use, compatibility and interoperability of their donated items or services.

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“We expect the exception, as modified by this final rule, to continue to facilitate the adoption of electronic health records technology,” the inspector general document stated. “We believe any safe harbor for electronic health records arrangements should protect beneficial arrangements that would eliminate perceived barriers to the adoption of electronic health records without creating undue risk that the arrangements might be used to induce or reward the generation of federal healthcare program business.”

The rules maintain programs put in motion in 2004 by then-President George W. Bush to facilitate his stated goal that most Americans have access to an EHR by 2014.

In the proposed rule (PDF), the OIG said the requirement that donated EHRs have the means to facilitate electronic transcribing had been eclipsed by subsequent acts by Congress to promote e-prescribing and the movement in this direction taken by the industry.

“We continue to believe in the critical importance of electronic prescribing,” the proposed rule stated in April. “We believe that there are sufficient alternative policy drivers supporting the adoption of electronic prescribing capabilities.”

Lab companies were excluded from the safe harbor because some industry stakeholders raised concerns that some have agreements with EHR vendors to charge other lab companies high fees to interface with the donated systems or prohibit other lab companies from making technology donations to their clients. Some comments on the proposed rule also raised concerns involving physicians asking for EHR donations as a condition of referring patients to a lab company.

“We believe this decision is consistent with and furthers our continued goal of promoting the adoption of interoperable electronic health records technology that benefits patient care while reducing the likelihood that the exception will be misused by donors to secure referrals,” the CMS said.

Follow Andis Robeznieks on Twitter: @MHARobeznieks


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